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Glyn Moody writes "C|Net has a surprising story about a seminar given by a top judge at the U.K.'s Court of Appeal who specializes in intellectual-property law. According to the article, he has "questioned whether software patents should be granted, and has criticized the U.S. for allowing "anything under the sun" to be patented." Is the tide turning?"

No, because a baking thermometer does not track progress. During baking the temp usually remains constant.

However, using a visual representation of a thermometer to track the progress of a school backing sale to fund the cheerleaders trip to Washington for cheerleading finals would qualify as prior art of the concept at least.

What really stinks is how ideas that have been in use in various forms for years, decades or even centuries are suddenly now new and novel becuase they are used on a computer. The word "non-obvious" has been completey removed as a screening criteria from the patent process.:(

That type of patenting must be stopped and all previous such obvious patents reversed.

Sir, here at the USPTO we take pride in granting patents without consideration of trifling concepts such as; gross obviousness, unoriginality and indeed patentability itself.

To be fair, when it comes to software, the USPTO has struggled under two logistical problems:

It's really tough to find prior art on a lot of software inventions. Sure, patents like Amazon's OneClick method and Compton's "embedding multimedia on a CD-ROM" method are evidence of obviously deficient examination - prior art should have been easy to find. But consider, say, an algorithm embodying a specific video codec - the only instances of prior art might be embodied in closed-source, commercial video players. Short of decompiling and reverse-engineering a bunch of complex software, the examiner is incapable of demonstrating prior art - especially in light of the USPTO's examiner productivity metrics, which severely limit the examiner's time frame for searching and finding prior art.

The USPTO has been really abused by Congress. They appoint patent administration officers not on the basis of patent experience, but as political favors. Worse, Congress views the USPTO as a cash cow and siphons off its excess funding - thereby depriving the USPTO of funding to improve its examination process (e.g., hiring more examiners.)

It's true that the USPTO could have done better with the resources at its disposal. But it's possible that it just hasn't been given enough resources to meet its responsibilities.

In either case, the USPTO is incompetant and incapable of doing its job. It should stop issuing patents immediately.

:shrug: Good luck with that argument.

Over the last five decades, the U.S. economy has moved steadily away from physical goods and toward intangible goods - services, culture, music, movies, etc. This includes the development of intellectual property. It is a cornerstone of our economy. That's why the U.S. Congress has steadily increased its support of intellectual property protection. Accordingly, the courts have read federal IP legislation with broadening scope, since this is the plain intention of Congress.

So if you're arguing for the dismissal of U.S. patent legislation, you'll have to suggest a way of recapturing the huge share of our GDP attributable to the export of patent-based intellectual property. Since our trade deficit is already deep in the red, you might not find your state Congresscritters to be very receptive.

Based upon your argument americans should live in a constant state of fear because it only requires a squiggle of a pen to transfer ip assets off shore i.e. instant economic bankruptcy. And don't think they wont transfer all those ip assets to more tax friendly, legislation bendy, the poor are there to be exploited by the rich, countries. All IP assets are ephemeral and any country that banks on them for it's future is heading for an economic disaster.

No, because a baking thermometer does not track progress. During baking the temp usually remains constant.The temperature of the oven, yes. The temperature of the food, no. Food doneness is usuallly checked by the temperature in the middle of the food: 140-180F for various meats, and a little over 200F for bread.

Oh, and this was filed in the U.S. but approved by a European patent office so I don't think it's fair for this judge to bash only us Yanks.

He seems to have been talking about law rather than practice. The EPO seems to be breaking the law, but it would take determination and money to bring that before the relevant court(s), if it's even possible. (IANAL, and I can't be bothered to wade through the treaties to establish jurisdiction and procedures).

He seems to have been talking about law rather than practice. The EPO seems to be breaking the law, but it would take determination and money to bring that before the relevant court(s), if it's even possible. (IANAL, and I can't be bothered to wade through the treaties to establish jurisdiction and procedures).

I don't blame you for not wanting to tread through the law - it's pretty marshy and unpleasant. Even IP professionals consider this to be a rather painful trawl through conflicting jurisprudence. H

While this judge's message may seem absurd, remember to pay royalties when you code a progress bar in your application.

Like most such citations, you apparently have NOT really read the patent claims (or even disclosure) -- it seems to be much more speicific than you imply. As usual, the patent itself contains a discussion of the related art that says: "Users typically need or desire to know the status of such tasks running in the background. Heretofore, this need has been accommodated by displaying a

OK, so it covers the use of a progress bar with a cancel button next to it (or a button doing anything else to the task whose progress is being represented), in a status bar, with a caption on top describing the task. It might well be a new combination of features, but is that really patent-worthy?

Progress bars with cancel buttons are old hat, as are progress bars in status bars (some of which, I'm sure, have cancel buttons) and progress bars overlaid with text. Just because no-one else has combined all

It might well be a new combination of features, but is that really patent-worthy?

I'm not sure I can say it is. I'd tend to agree that it might be open to some question -- but I also think there's a huge difference between something being open to some question, and being clearly bogus.

I'd also note that from the viewpoint of the patent office having done its job, this is a crucial difference. IMO, it's unfortunate, but the current US patent law favors issuing a patent if there's any real room for dou

IMO, it's unfortunate, but the current US patent law favors issuing a patent if there's any real room for doubt. It basically says to apply for a patent, you have to sign an affidavit saying that as far as you know, this is really your own invention.

In fact, this duty goes much further: applicants are required (1) to have conducted at least a minimal search, (2) to disclose all known prior art that might be relevant, and (3) to assert their reasonable belief that the invention is still patentable in light of this prior art.

Unfortunately, very often, applicants wildly shirk this responsibility. One of the damning factors of current software patent practice is that for many issuing patents - including junk like scrollbars - the applicants disclosed no prior art. You have applicants filing claims for inventions like "selling products over the Internet" and disclosing fewer than three prior art references - as if they simply don't know of many businesses selling products over the Internet. It's deplorable.

This is one of the best suggestions for fixing the USPTO's examination system: start enforcing Rule 56 sanctions, i.e., start punishing applicants (and patent practitioners) who fail to satisfy their due-diligence research and disclosure duties. A few sanctions, including patent license suspension, would prompt a rapid and marked reduction in the number of patent applications being filed, and in the quality of those patent applications.

In particular, the patent only seems to cover a progress bar that's embedded into a status bar AND accompanied by a button that allows the user to do something that affects whatever task the progress bar is related to.

It sounds like KMail infringes this. When a task is running (e.g. moving a bunch of messages from one folder to another on an IMAP server), a progress bar is displayed in the status bar in the bottom right of the window. Clicking the button to its side with the up arrow on it lists exa

Oh, and this was filed in the U.S. but approved by a European patent office so I don't think it's fair for this judge to bash only us Yanks.

Unfortunately the EPO and its Board of Appeal have been making up their own rules and approving patents on IP which should not be patentable according to the law establishing the EPO. Last night (EST) Groklaw carried this story [groklaw.net] about the European Parliament's recent rejection of the Computer-Implemented Inventions Directive. The essay has many quotes from a British j

Oh, and this was filed in the U.S. but approved by a European patent office so I don't think it's fair for this judge to bash only us Yanks.

Unfortunately, I can't deny this fact but I would like to point a situation so weird that in comparison, US legal system would seem clean.

It is pretty clear according to the EU laws that a software or an algorithm can not be patented. It is written, it is a binding law of the European patent office. Despite of this, this office delivers software patent. Just like

Software patents are already (technically) not permitted here, and yet crazy inconsistencies and loopholes are allowing people to patent whatever they want. Including software and other things that are explicitly not allowed to be patented. It is good that some people are finally starting to look at this from a sensible point of view. Maybe now some progress can be made on making the patent laws sane.

But this Judge's opinion is quite representative of the concerns of many in Europe.

And? Here in the US our government is about to confirm a candidate to the Supreme Court who has been clear in his opinion that the courts of the United States should not look to courts in other parts of the world as barometers of jurisprudence.

All of Europe could decide software patents are invalid and that would have little bearing on the granting or enforcement of such patents within the United States.

If software companies everywhere in the world except the US can disregard software patents then this will mean:

Software development in the US will be more expensive, and/or

Software sold in the US will be more expensive

I can think of at least one company with a very large lobbying fund that would not be too happy to see this. Currently, software patents are tolerated by US businesses based on the belief that they will be valid in the rest of the world eventually, and the US will have an advantage since they were allowed to start collecting them before anyone else. If it looks like this is not going to be the case, then I can see a lot of pressure placed on the government to revoke them.

Remember that the EU software patent directive was rejected by a margin of over 600 votes

Bear in mind that the margin of defeat does not represent the true level of opposition. The pro-Patent lobby suddenly switched at the last minute and told their cronies and shills in the EU parliament to vote against the directive.

The pro-Patent lobby suddenly switched at the last minute and told their cronies and shills in the EU parliament to vote against the directive.

Because they knew they couldn't win, and by voting for the proposal that had no chance, they would have hampered their further chances later on. They still weren't going to win; apparently even they realised that.

I don't think the courts are the problem. The vast majority of software patents are invalid, and most judges competent in that area, and the lawyers who prepare patents, know that perfectly well. They just don't share their little-o opinion about it very often.

The problem is patent law. Patents are valid until proven otherwise in court. They can be abused for intimidation of smal

I don't think so. Lots of people have been saying that software patents aren't needed, for a long time, and this is just one more guy. Sure, he's a guy with `credentials', but even that's not so unusual.

When the patent process actually changes, THEN you can say the tide is turning. Until then, the tide is just growing, like it has been for a long time...

I concur 100%. If I see Bill Gates or Sam Palmisano (or even Darl McBride hhahaahahahaha) make these types of statements I might change my mind. However, until the powers that be (i.e. the ones w/money buying up and enforcing all these patents) take the necessary measures to fix the problem they have created, I don't foresee any improvement regarding software patents.

The tide will only turn when the whole goddamn patent system comes screeching to a halt, when one can't write software that does any more than print "Hello World" without having ever facet of the program picked through by some species of patent lawyer, where development becomes so difficult that even the larger corporations begin to falter under the weight of idiotic patents and a moronic, ill-conceived patent system which was designed for a novel use of springs and cogs, and not for the arrangement and int

When the patent process actually changes, THEN you can say the tide is turning.

Erm... We don't want the process to change over here. Right now, software patents are of dubious value at best here in Europe, and one of the few things our European overlords have got right recently is kicking out the attempt to change that.

Though the whole topic of software patents has usually only one solution of abolishing them completely, there were a few good works as well which deserved to be patented for e.g. RSA encryption etc, But these are really very few in number compared to the number of stupid/ridiculous/outrageous patents that are granted.

Perhaps a compromise is for patent examiners to assign a rating to the patent. For example, C are weak patents, B are medium ones, and A strong ones. If all the "one click" and "same as 1940 except with a computer" patents get a C ranking then judges will be more likely to overturn them.

Judges don't understand technology and generally give the patent office the benefit of the doubt if they don't get something or are confused. A rating system will allow them more leeway to turn down questionable stuff.

RSA encryption is a mathematical algorithm. You can't patent that. You can't patent a program that implements a mathematical algorithm either (or you shouldn't be able to). I don't think i've seen a piece of software that should be patentable.

I had a choice between modding this down and replying, but I'll give you the benefit of the doubt here. Anything can be described as a mathematical model based on a set of axioms, from which operations on elements can be performed. That's right, your toaster has many underyling mathematical principles, so does your microwave, and any other device. There really isn't a whole lot you can't use some mathematical model to explain. So given your reasoning, there ought to be no patents. Even such ideas as relational databases can be explained quite well using Tuple Calculus [wikipedia.org]. Complex operations within relational databases can be derived from broad mathematical definitions. It's a property of emergence, and in the future I don't see many, if any, fields not represented by some subset of mathematics.

To put it succinctly, if you don't like patents, simply say so. If you're going to be grabbing for excuses not to like certain kinds of patents, you're not helping the problem.

The difference between a toaster (which would be patentable if it was a new invention) and software is that the toaster isn't implementing a mathematical algorithm. The resulting actions of the toaster can be explained by physics and chemistry, but isn't the result of pure manipulation of numbers. RSA is just a way of manipulating numbers. A toaster, or any other physical invention should do more than manipulate numbers. unless it's a computer, and it's purpose is manipulating numbers. I have no idea why nobody ever patented the computer. Basically it should work like this. If you can't patent something without adding "software","a computer", or "the Internet" to it, you shouldn't be able to patent something simply by adding "software","a computer", or "the Internet" to it. If you could patent RSA you wouldn't need to patent software that implements it, because that would be covered by the existing patent. Since you can't patent RSA, you can't patent a piece of software that implements it.

One would draw the line where you yourself have very nicely drawn it and disallow claim #3.

You're missing the point. Claim #3 doesn't mention "software." It could be embodied as software, or as a circuit, or as the moving parts of the toaster. It is claimed solely as a "method," and is protected no matter how it is implemented. At the end of the day, it's just a method.

For many years, U.S. courts tried exactly what you propose: disallowing patents for "software" methods, but allowing patents for "othe

There really isn't a whole lot you can't use some mathematical model to explain. So given your reasoning, there ought to be no patents.

An explanation or a description of a thing is not the thing. There is nothing that can't be explained or described in English, either, but that does not make books patentable. You are confusing the use of math as a language used to describe and invention with the treatment of the math as an invention.

Just because I use math to describe my invention, doesn't mean that my invention is a mathematical algorithm. The way a toaster works can be explained using mathmatics, but you also have to use physics and chemistry to explain how the electricity makes the element hot, how the heat gets to the bread, and why the bread turns brown when the heat is applied to the toast. Just because you use math to describe the physics and the chemisry, doesn't mean that your invention is math. If you look at RSA, it is

Just because a mathematical algorithm is non-trivial, doesn't mean you can patent it. Most of the new stuff that mathematicians come up with is non-trivial. The fact of the matter is, is that math is patentable. If all your invention is, is a series of mathematical operations, then that shouldn't be patentable. Most software is either A) implementing some new mathematical algorithm, and although, non-trivial, is not patentable, because it is a mathematical algorithm, or B), is the usage of these algorit

Actually it's the application of a specific property of prime numbers and "clock" algebra. It is non-trivial and was a specific work to make encryption from available tools.It took lots of work by 3 very very clever people and if you honestly believe that YOU could have done it then by all means don't grant that patent.

By that standard, almost every advance in science for the last couple of hundred years should be patentable. I fail to see how you can make a distinction between pure research in physics and

102(a) "known or used" this has long been held to be interpreted as "public" knowledge and/or use

I can find references which talk of the existence of exceptions, although without clearly identifying them. E.g. [vaslaw.com]

In some very rare cases, even if a first inventor never files a patent application, and publication of the first invention only occurs after a second inventor's application is filed, and the second inventor had no knowledge of the first inventors work before it was published, the first inventor's inve

Many of us *don't* consider something like RSA to be patentable. It's an algoritm, basically just like using a**2 + b**2 = c**2 to calculate the proper length of a diagonal when building a house. Most people would scoff at the idea of patenting the pythagorean theorem, and making home builders everywhere pay a royalty to some random guy who patented it.For some reason, people are more willing to accept a patent on an encryption algoritm. But, it is basically the exact same thing. Some math, and a descri

The USPTO grants both DESIGN patents and UTILITY patents. They are completely different animals. A design patent protects only the ornamental appearance of an invention, not its utilitarian features.
The santa hat received a DESIGN patent, which is perfectly reasonable. It provides stronger protection against knock-offs, clones, and imitations.

The EU Commission are trying to push through software patents again. There's a write-up on Groklaw [groklaw.net]. I think their idea is to keep trying again and again until we get sick and tired of protesting it.

I think their idea is to keep trying again and again until we get sick and tired of protesting it.

That's exactly it. The IP companies only need to get lucky once, the rest of us have to be lucky time and time and time again. Eventually, they'll get through, and then we'll be stuck with software patents forever, as to atempt to dislodge them would be "theft" of IP rights.

As CTO of a company, I was thinking that I'd send them my position on the matter...
It looks like they're making this consultation as difficult to contribute to as they can get away with...

The thing is a PDF, you read it, write your answers separately and send them all to an email address.
I just read the damn thing and it's basically HEAVILY BIASED towards companies... Seeing that, I'm not sure my answer would do anything, but I'll do it anyway... take for instance this introductory exert from from the PDF:

The idea behind the patent system is that it should be used by businesses and research organisations to promote innovation.

Strange, I was under the impression that patents were there to protect INVENTORS, not businesses.

That's not entirely correct. Both the sun and the moon contribute to the tides. While the moon is primarily responsible, the sun has a secondary effect, which causes the spring and neap tides - where the peak to peak variation is maximized and minimized respectively.

Just to be a pain in the butt, I'd like to put out that the sun actually does affect the tide. It is much less noticeable then the moon, because it is so far away, but it does have an impact on the tides (and a technically measurable one at that).

The amplitude of the tide is much higher during a new moon and a full moon.

Getting pretty badly off-topic, but as-stated, that doesn't seem (to me) to make a lot of sense.

I'd think the tide would be maximized at new moon, and minimized at full moon. The sun and moon are aligned in both cases, but during full moon, the moon and sun are on opposite sides of the earth, so the gravity from the sun and moon are in direct opposition to each other. Perhaps I'm missing something, but it seems like that shou

I agree you should be able to patent a process. However the US system defines no logical limits on such a definition. The RIM Blackberry versus NTP is only one good example. NTP patended the process of sending communication to a device from a server, this is basically the concept of all TCP/IP traffic, however since NTP was successfull in making certain claims they OWN this process, and others must pay royalties to use it, regardless of how obivous it is.

A process is not a tangible thing. It does not operate on specific components. no matter how specific you make it, a process is not a tangible, "hold in your hand" item. It doesn't do anything, not by itself at any rate. A process is an abstract concept, and patenting abstract concepts used to be disallowed.

It would be bad enough if the process was well defined, but with half the process patents out there, what was originally meant to be applied to computer chip manufacture is so vauge taht it could just as easily be used to sue a kid selling lemonade to passers by.

Hardly. This judge is in the UK, and is clearly in violation of U.S. Patent #15648663245877954-5468, "Method for Citizens of Foreign Countries to Criticize the United States on Matters of Intellectual Property," filed by my company, Litigious Bastards, Inc., on November 3, 2002. He will be hearing from our lawyers shortly.

It doesn't seem to me that the patent process is inherently ill-suited to software. In fact, it's a far better fit than copyright because of the nature of the resultant work. The patent system requires full disclosure of the invetion (the copyright laws do not) and the term is definite (20 years v at least 70 years for copyright). With the copyright system (the only system left for protection if patents are withdrawn), there is no disclosure, so you end up with DRM to protect access to copyrighted elements even though not all the elements are copyrightable. However, circumventing the DRM to discover non-copyrightable elements is either a violation of the law or it is a violation of the EULA that you agreed to. If the software could only be patented, the applicant would be required to disclose the entirety of the invention and thereby promoting science. It would, by definition, only allow those elements that are protectable to be protected and the patent would clearly disclose what those are. Copyright laws only act to obfuscate the promotion of science.

The problem with software patents is not that patenting is ill-suited but rather that discovery of prior art and laziness by the PTO have resulted in questionable patents being issued. Even this isn't a problem, because when challenged and scrutinized those patents that are bad are discarded and those that are good are upheld. The problem lies in the cost to litigate this - essentially ensuring that the "little guy" must bow to the pressures of the multi-national corporation.

Instead, maybe the PTO should adopt a cheap ex-parte reconsideration procedure (to my knowledge only the applicant can request reconsideration for a patent that is denied) that lasts for the lifetime of a patent where the challenger only needs to present some evidence of a patent-destroying issue. This would eliminate the huge costs of trying the patent in a court of law and make the process a little more fair. If there is evidence of non-obviousness or prior use for a "progress bar" the patent will destroyed, otherwise, why shouldn't the patentee be rewarded for his new and novel invention (it should be to his benefit that such an invention is widely used!)

That's like saying you can't patent the implementation of a microchip because all it is is mathematical formulas.

Software adapts mathematics (be it simple boolean operations or complex searching and sorting algorithms) to a specific form and function. If an adaptation was sufficiently unique, non-obvious and usefull, then it might be reasonable to patent it.

Now, I don't support software patents, mostly becuase of the inept patent system we have.

That's like saying you can't patent the implementation of a microchip because all it is is mathematical formulas.

A microchip is a physical assembly of circuits, transistors and silicon. It performs a physical function. Like everything else its operation is based on physical and mathematical laws. But it is not a mathematical algorithim.

Software adapts mathematics (be it simple boolean operations or complex searching and sorting algorithms) to a specific form and function. If an adaptation was sufficiently

The problem with software patents is not that patenting is ill-suited but rather that discovery of prior art and laziness by the PTO have resulted in questionable patents being issued. Even this isn't a problem, because when challenged and scrutinized those patents that are bad are discarded and those that are good are upheld. The problem lies in the cost to litigate this - essentially ensuring that the "little guy" must bow to the pressures of the multi-national corporation.

The problem lies in the cost to litigate this - essentially ensuring that the "little guy" must bow to the pressures of the multi-national corporation.

Actually, the opposite tends to be true. The bad publicity associated with suing "little guys" tends to prevent big companies from suing. By contrast, lots of the little guys sue big companies all the time -- and quite a few make a good (sometimes almost unbelievable) living out of it too.

If you want a serious example, look up "Jerry Lemelson". In case, you want to see a serious example of how badly wrong Wikipedia can get things, look him up there to start with (if you know anything about him, it'll give you a good laugh).

Though he got hundreds of patents (and they may still be issuing) the only thing he ever invented (and I'm not sure he invented it, but he certainly used it a lot) was the submarine patent -- he'd keep patents "in the system" for years, often even decades. He'd write an initial patent that was exceptionally broad and vague, but then keep writing amendments to it for years at a time. Then, when somebody invented something roughly similar, he'd rewrite his old patent (that was still in the system) to cover what they invented, and claim he invented it decades earlier.

Just for one obvious example, he originally wrote a patent on a computer system. Later, when TI invented the microcontroller (i.e. CPU and peripherals on one chip) he rewrote his old computer system patent by basically adding "and...uh...all of that is on one chip." It took quite a long time, but eventually this did get sorted out in court -- the court fuled that his rewritten patent was invalid because the original application showed no evidence that he'd originally even contemplated what was really the important part of the invention -- moving the peripherals onto the same chip as the CPU.

TI did the right thing, fighting this all the way through court to get a bogus patent invalidated. Most companies, however, won't do that -- if the patent holder offers to settle for (say) half what they'd have to pay for the patent litigation itself, they'll just pay the money, and move on.

Given that a patent case will usually cost millions of dollars, it's pretty easy for "little guys" to go and basically blackmail big companies into giving them a few hundred thousand dollars (or so) with even a thoroughly bogus patent. The afore-mentioned Jerry Lemelson did exactly this to the tune of billions of dollars. Despite the money he made (and his estate still makes, as I understand things) he did stay a little guy in terms of (complete lack of) integrity though.

For each instance where this is true, there are an equal number of instances where the "little guy" is strong-armed by the big guys. In any event, the point of the original post remains true - the cost of litigating patent validity between parties is high; it makes more sense to offload those costs to the PTO which has the internal mechanisms in place to make review more efficient.

Patents are not the problem. It is ill-equipped patent reviewers and weak reviewing guidelines that are.

Innovative work expressed in software (a virtual machine) should have the same protection as any innovative work expressed in mechanical form (a physical machine). It is the non-obvious innovative work part that the patent office seems to not understand when it comes to software as well as they do when it comes to physical machines.

IMHO, what is needed are stricter rules, guidelines and use of software experts to review software patents.

Innovative work expressed in software (a virtual machine) should have the same protection as any innovative work expressed in mechanical form (a physical machine). It is the non-obvious innovative work part that the patent office seems to not understand when it comes to software as well as they do when it comes to physical machines.

No, the tide is not turning, as the Microsoft FAT patent nonsense has demonstrated. There is much outcry on both sides of the pond about software patents. There are frivolous lawsuits in the US, protests in Europe. And now an EU judge has said that patents shouldn't apply to software. So what? This policy, at least in the US, is not determined by public sentiment, nor by obvious negative experiences with patenting software. It's determined by the Congress, and they are in the pockets of media, technol

It is still ludicruous. Sweden is bound by international treaties and probably EU law, things which you cannot just rip apart without dire repercussions.If Piratpartiet *does* get into parliament and get any kind of influence (could happen), it would most likely be because they are the Ny Demokrati of the year. Most people have no clue about or opinion on such complex matters as intellectual property. Also, no other party would form a coalition with them.I *do* share their goals of abolishing intellectual p

I'll admit I know zero about IP, but as far as I can tell a software patent is simply a subset of patents, so if you can answer the second question, you'll have you answer for the first.
Is the patent really the problem?

Why should anyone be able to patent anything? What differentiates a piece of hardware from a piece of software, aside from the medium in which it is presented?

"Anything Under The Sun That Is Made By Man"This phrase is from the Senate Committee Reports accompanying the 1952 Patent Act. Congress intended the statutory subject matter to "include anything under the sun that is made by man." S.Rep.No.1979, 82d Cong., 2d Sess., 5 (1952)

However, there are limits to patentable subject matter. For example, laws of nature and abstract ideas are not patentable. Drawing the line between patentable software and "abstract ideas" is up to courts.

Just because the USPTO issues a patent doesn't mean it will be enforced in court. An issued patent creates a presumption of validity, but this is a rebuttable presumption, and patents are struck down.

That was to stop and undo an outright invasion by Iraq of another country. This time is different because it is not tied to any (confirmed) huge sin by Saddam. You misunderstand me. I meant that previous presidents paid attention to what other countries had to say. I'm not criticizing European nations for not going into Iraq, I think they made the right call there.

You never could patent code - you patent inventions.
Code is copyrighted.

In every discussion like this there is always somebody who don't know the difference between patents, copyrights, trademarks, and trade secrets.

Addressing your actual point, up till now the development of computer algorithms has progressed very nicely without much patent protection. It's a bit like saying, "without patent protection, where's the incentive to develop new physics?"

If you can't patent code, where is the incentive to research new algorithms.

You can't patent code -- you can patent (for exmaple) an article of manufacture that embodies the code, a method of operating a computer that happens to depend on code, etc.

That, however, is more or less beside the real point. The point of the patent system isn't primarily to encourage research, inventions, etc. Its point is to encourage people to publish their inventions, and to place them into the public domain in return for exclusive rights to them for a short time.

For those who've pointed out that software technology progressed before patents were allowed on software, I'd point out that while this is at least partly true, there are other things to keep in mind. At that time (up through about the seventies or so) software mostly wasn't an industry in itself. Most software was developed by hardware companies like IBM as what they had to do to sell their hardware. Since they saw the hardware as the real product, and the software as having no real value in itself, it was pretty easy for coders to publish what they did.

If there weren't patents today, I'm reasonably certain the situation would be a whole lot different. IBM (to reuse the previous example) has a software business that makes billions of dollars in itself. If they couldn't patent their inventions in this area, my guess is that they would not just publish them and given them away to everybody. Instead, they'd keep them secret.

The patent system is basically an investment on the part of the public. We don't have to put in money (directly) up-front, but we give the inventor some value, and in return we get full rights to their invention (eventually).

As far as bogus patents go: it's true that there are quite a few patents that are basically nonsense. Many aren't really original, and some don't even work at all (e.g. there are currently some in faster-than-light communication). That's more or less par for the course in investments though -- people diversify investments largely because they know at least some things they invest in are going to be complete losers. In addition, keep in mind that what we've given up is the value of the patent for a period of time -- if the patent has no value in the first place, we've given up exactly nothing. In fact, we get even a slightly better deal than that -- the patent office is profitable, so every time a completely bogus patent gets issued, our tax burden (and gov't debt) is reduced by some tiny fraction of a percent.

Admittedly, if you're in the position of the EU (for one example) you're pretty much getting the best of both worlds -- since most real inventions will be patented in the US anyway, you get the benefit of it being published, but without having to give the inventor anything in return.

Given that what we're investing is a limited period of exclusive rights, the real question (IMO) is mostly whether we're investing the right amount of time. This is basically a balance -- if the period of a patent is too short, the inventor is more likely to maintain something as a trade secret instead of patenting it. If the period is too long, we're increasing the cost, and decreasing the payoff. The question is how soon the invention is likely to become obsolete -- if most are obsolete before their patents expire, we're getting a lousy deal.